Citation Nr: 1425712
Decision Date: 06/06/14 Archive Date: 06/16/14
DOCKET NO. 11-05 015 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased rating for bilateral hearing loss, currently rated as 0 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Kimberly A. Mitchell, Associate Counsel
INTRODUCTION
The Veteran had active military service from March 1985 to July 2006.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In May 2012 the Veteran testified during a travel board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required.
REMAND
Although the Board sincerely regrets any additional delay, the issue of entitlement to an increased rating for bilateral hearing loss must be remanded for further development.
The Veteran is seeking an increased rating for service connected bilateral hearing loss, currently rated 0 percent disabling. He was last examined to determine the severity of his bilateral hearing loss in May 2010. During that examination, no consistent pure tone thresholds could be subjectively obtained from the Veteran for rating purposes, even with repeated instruction during the testing procedures. Despite the lack of consistent pure tone thresholds, the examiner provided a diagnosis and opinion based on the Veteran's previous audiological examinations from 2006 and 2009. Those examinations revealed a mild to moderate low-frequency hearing loss in the right ear and a mild low-frequency hearing loss in the left ear. The examiner diagnosed bilateral low-frequency sensorineural hearing loss.
At a May 2012 hearing before the undersigned, the Veteran testified that he had various problems associated with hearing. He had to listen to the television at a raised volume, had difficulty hearing due to ringing in his ears from his service connected tinnitus, he needed to look at people when conversing in order to hear and understand them, and his wife became irritated with him because she often had to repeat herself when talking to him. The Veteran and his representative asserted that his service-connected hearing had worsened since the most recent May 2010 VA audiological examination.
Unfortunately, the May 2010 audiological examination is not adequate for rating purposes as it did not produce pure tone thresholds that were considered reliable. Consequently an accurate assessment of the level of his hearing acuity could not be made. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly as the last examination conducted in May 2010 was inadequate for rating purposes, and the Veteran alleges a worsening in his hearing loss, the Board finds that remand is necessary to afford the Veteran a new examination to determine the current severity of the Veteran's disability.
Accordingly, the case is REMANDED for the following action:
1. Obtain all pertinent VA medical records, not yet associated with the claims file.
2. Then, schedule the Veteran for a VA audiology evaluation by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his bilateral hearing loss disability. The examiner must review the claims file and must note that review in the report. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes.
3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the claim to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).